Exhibit 10.61
SELECT MEDICAL CORPORATION
P.O. Box 2034, 0000 Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
February 23, 2001
Xx. Xxxxx X. Xxxxxxx
Select Medical Corporation
P.O. Box 2034
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Re: Amendment to Agreement in the Event of a Change of Control of SMC
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Dear Xx. Xxxxxxx:
The following will confirm our desire to amend the Letter Agreement dated
as of March 1, 2000 (the "Letter Agreement") of Select Medical Corporation, a
Delaware corporation (the "Company"), with you concerning the consequences upon
certain terminations of your employment in connection with a change in control
of the Company.
In consideration of your past and continued service to the Company and in
consideration of the mutual covenants and agreements contained in this Amendment
to the Letter Agreement (the "Amendment"), the Company and you hereby agree,
intending to be legally bound hereby, as follows:
1. The portion of Section 1 of the Letter Agreement which appears before
clause (ii) is hereby amended and restated as follows:
"A "Covered Termination" shall be deemed to occur if (i) within the
five-year period immediately following a Change of Control (as defined
below), (a) your employment with the Company is terminated by the Company
without Cause (as defined below), (b) there is a reduction by the Company
in your compensation from that in effect prior to such Change of Control,
or (c) you are required to be based anywhere other than the Company's
principal executive offices in (or within 25 miles of) Mechanicsburg,
Pennsylvania (except for required travel on the Company's business to an
extent substantially consistent with your business travel obligations prior
to the Change of Control),"
2. Section 3(c) of the Letter Agreement is hereby amended and restated as
follows:
"(c) Good Reason. For purposes of this Letter Agreement, you shall have
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"Good Reason" to terminate your employment after a Change of Control if you
make good faith determination that, as a result of such Change of Control,
you are unable to perform your services effectively or there is any
significant adverse change in your authority or responsibilities, as
performed immediately prior to such Change of Control."
3. The Letter Agreement is hereby amended by the addition of the following
Section 7 in its entirety, to be inserted immediately after Section 6 in its
entirety:
"7. Claims Procedure. Any claim for benefits under this Letter Agreement by
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you shall be made in writing and sent to the Company at its principal offices in
Mechanicsburg, Pennsylvania, or such other place as the Company shall hereafter
designate in writing. If you, or any beneficiary following your death
(collectively, the "Claimant"), believes he or she has been denied any benefits
or payments under this Letter Agreement, either in total or in an amount less
than the full benefit or payment to which the Claimant would normally be
entitled, the Company shall advise the Claimant in writing of the amount of the
benefit, or payment, if any, and the specific reasons for the denial within
thirty (30) days of the receipt of the Claimant's claim. The Company shall also
furnish the Claimant at that time with a written notice containing:
(A) A specific reference to pertinent provisions of this Letter Agreement;
(B) A description of any additional material or information necessary for
the Claimant to perfect the claim if possible, and an explanation of why
such material or information is needed; and
(C) An explanation of the claim review procedure set forth in this Section
7.
Within sixty (60) days of receipt of the information described above, the
Claimant shall, if further review is desired, file a written request of
reconsideration of the Company's decision with the Appeal Committee. The Appeal
Committee shall consist of those individuals who were serving as the
Compensation Committee of the Board of Directors of the Company immediately
prior to the Change of Control. The Appeal Committee shall select from its
membership a chairperson and a secretary and may adopt such rules and procedures
as it deems necessary to carry out its functions. In the event any individual is
unable to serve on the Appeal Committee, then the chairperson of the Appeal
Committee shall appoint a successor provided such successor must have been a
member of the Board of Directors of the Company prior to the Change of Control
("Prior Board Member"). So long as the Claimant's request for review is pending
with the Appeal Committee (including such 60-day period), the Claimant, or his
duly authorized representative, may review pertinent documents and may submit
issues and comments in writing to the Appeal Committee. A final and binding
decision shall be made by the Appeal Committee within thirty (30) days of the
filing by the Claimant of the request for reconsideration. The Appeal
Committee's decision shall be conveyed to the Claimant in writing and shall
include specific reasons for the decision and specific references to the
pertinent provisions of this Letter
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Agreement on which the decision is based. The Appeal Committee shall discharge
its duties under this claims procedure in accordance with the fiduciary
standards of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and in doing so, to the extent permitted by law, shall be indemnified
and held harmless by the Company (to the extent not indemnified or saved
harmless under any liability insurance or other indemnification arrangement with
the Company) for or against all liability to which the Appeal Committee may be
subjected by reason of any act done in good faith with respect to the
adjudication of any claim under this Letter Agreement, including reasonable
expenses. Notwithstanding anything to the contrary herein contained, the
Claimant shall be entitled to submit his or her claim for determination to any
court having competent jurisdiction regardless of whether he or she has first
exercised his or her right to have the Company's decision reconsidered by the
Appeal Committee."
4. Except as amended hereby, the Letter Agreement shall continue in effect
in accordance with its terms.
Please indicate your acceptance of the above Amendment by signing below in
the space indicated.
Very truly yours,
SELECT MEDICAL CORPORATION, a Delaware
Corporation
By: /s/ Xxxxxx X. Xxxxxxxx,
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Xxxxxx X. Xxxxxxxx,
President
Agreed to and accepted:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
